Your HR and Payroll compliance and policy solution! Comply with federal, state, and international laws, find answers to your most challenging questions, get timely updates with email alerts, and more with our suite of products.

NEWS

Former EPA Official Should Be Disqualified As Expert Witness, Justice Dept. Tells Court

Turn to the nation's most objective and informative
daily environmental news resource to learn how the United States and key
players around the world are responding to the environmental...

By Patrick Ambrosio

July 21 --Former Environmental Protection Agency official Jeffrey
Holmstead should be barred from serving as an expert witness in an
enforcement action against a utility company, the Justice Department
told a federal court (United States v. Ameren Missouri,
E.D. Mo.,
No. 4:11-cv-77,motion to disqualify filed
7/18/14).

The DOJ, in a
motion
filed July 18, asked the U.S. District Court for the Eastern District
of Missouri disqualify Holmstead as an expert witness for Ameren
Missouri due to “multiple conflicts of interest.”

Holmstead, now a partner at Bracewell & Giuliani LLP, served as
EPA assistant administrator for air and radiation in the
administration of President George W. Bush.

Ameren Missouri is contesting EPA allegations that the company
failed to obtain proper construction permits and didn't install the
required best available pollution control technology when it modified
two coal-fired electricity generating units at the Rush Island Plant
in Festus, Mo.

The government said it is objecting to Holmstead's testimony based
on a May
expert
report, which the DOJ said indicates that Holmstead would rely on
his recollection of “privileged and confidential”
information obtained at internal EPA meetings. Holmstead also
participated in power plant enforcement cases that are
“related” to the Ameren Missouri case and received other
privileged information on the issues that he now seeks to testify on,
according to the motion.

The DOJ filed the motion after the government and Ameren Missouri
failed to reach an agreement to resolve the objections to Holmstead's
testimony .

Bracewell & Giuliani, the law firm that employs Holmstead, did
not respond to a request for comment.

Confidentiality Obligations Raised.

The DOJ, in a
memorandum
filed in support of the motion, said Holmstead should be disqualified
from serving as an expert witness based on both the Rules of
Professional Conduct of the District of Columbia, where Holmstead
currently works as an attorney, and the Missouri Rules of Professional
Conduct.

The memo alleged that Holmstead's testimony would violate
confidentiality provisions that prohibit lawyers from using
“client confidence” to the disadvantage of the client or
to the advantage of a third party. Holmstead's testimony would use
“internal confidences” that he gained while working at the
EPA to the disadvantage of the EPA and to the advantage of Ameren
Missouri, according to the DOJ.

Holmstead, in his expert memo, said that the “regained
hours” methodology for analyzing a power plant's emissions, also
referred to as the GADS method, was not mentioned during EPA internal
meetings on the development of the agency's new source review
permitting program. In the expert memo, Holmstead said use of that
methodology is not consistent with the EPA new source review
regulations.

The DOJ memo also argued that Holmstead should be disqualified
because he participated in other new source review enforcement cases,
which are “substantially related” to the Ameren Missouri
case. The memo cited evidence that Holmstead played a
“supervisory role” on specific power plant litigation
briefing under the new source review
program.

'Confidential Relationship.'

Holmstead also had a “confidential relationship” with
the EPA that would disqualify him from serving as an expert witness
even if he weren't relying on “internal confidences” and
hadn't participated in substantially related litigation while at EPA,
according to the Justice Department.

The traditional standards governing expert witness conflicts
provide that an expert should be disqualified if there was a
confidential relationship between the expert and the party claiming
the conflict--in this case the EPA--and if that party had provided
confidential or privileged information to the expert, the DOJ
said.

It is “objectively reasonable” for the EPA to conclude
that it had a confidential relationship with Holmstead, who held the
highest-ranking position within the EPA Office of Air and Radiation,
according to the DOJ. During his time at the EPA, Holmstead received
privileged and confidential internal communications relevant to the
new source review program, on which he now seeks to testify, the
Justice Department said.

An attorney familiar with the litigation told Bloomberg BNA July 21
that the DOJ filings fail to identify what information they
specifically allege is confidential, an obligation that the party
seeking to disqualify an expert witness on those grounds must meet.
The attorney said it is “just not possible” for those
rules regarding confidential information to apply to Holmstead, given
the amount of time that passed between his service at EPA and the
filing for the enforcement case against Ameren Missouri.

Holmstead left the EPA in 2005. The EPA filed its enforcement case
against Ameren Missouri in 2011.

Former Officials Have Ethical Obligations.

Eric Schaeffer, executive director for the Environmental Integrity
Project and former director of the EPA Office of Civil Enforcement,
told Bloomberg BNA July 21 that he isn't familiar with the specifics
of the DOJ allegations against Holmstead, but he explained that former
EPA officials do have some ethical obligations after leaving the
agency.

Schaeffer said former officials aren't allowed to “take
information that's confidential out of EPA and use it for the other
side” in an enforcement case. He said such confidential
information could include analysis of a company's economic position
gained while looking at possible civil penalties and information
learned during negotiations or settlement discussions that are not
part of the public or legal record.

Schaeffer said the DOJ has never objected to his involvement in
litigation against the EPA, though he noted that his organization
generally files “deadline suits” that aim to compel the
EPA to put regulations in place when they miss a deadline. The
Environmental Integrity Project also has weighed in on lawsuits
challenging the policy of some EPA rulemakings, including the new
source review program, but has based their arguments on information
that was part of the public record, he said.

Several other former high-ranking EPA officials did not immediately
respond to requests for comment on their ethical and legal obligations
related to their service at the EPA.

To contact the reporter on this story: Patrick Ambrosio in
Washington at
pambrosio@bna.com

To contact the editor responsible for this story: Larry Pearl at
lpearl@bna.com

All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to books@bna.com.

Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)

Notify me when updates are available (No standing order will be created).

This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to research@bna.com.

Put me on standing order

Notify me when new releases are available (no standing order will be created)